Shi, R (on the application of) v King's College London

MR JUSTICE MITTING: The claimant was an undergraduate student at King's College London, in the third year of a 3-year course in computer science. She was due to sit three examinations in May 2006. On the date of the third examination, 25th May 2006, her mother underwent an urgent and dangerous eye operation in Hong Kong. The claimant knew of that and was understandably anxious about it.

On that day the claimant sat the deductive databases and logic programming exam. She left it early, having completed her examination paper. The invigilator examined her desk and found on the inside cover of one of her answer books three post-it stickers, with neat handwriting on each side. Not all of it is readily decipherable by me because I am not an expert in computer programming. One side of one of the post-it stickers, however, contains text in language which, though it includes jargon, is at least understandable to the lay reader. The invigilator concluded that this may well be evidence of cheating on the part of the claimant.

The claimant lived during term time at a flat in Docklands, 65 Galaxy Building, Crews Street, Docklands, London E14, a flat which she shared with a friend. The friend had the key to the postbox, which was situated in the communal areas of the building. The friend left on 28th May, taking the key to the postbox with her. Term ended on 9th June. The claimant flew to Hong Kong on 10th June. Some 14 days later she flew to Beijing, where she had a flat and spent the summer.

The invigilator's concerns were reported to the appropriate authorities within the college and Paul Fairweather, the newly-appointed Student Conduct and Appeals Administrator, set the disciplinary proceedings in motion. I will shortly set out the relevant parts of them.

The first stage in the proceedings was the convening of a preliminary inquiry which the student was required to attend. At that stage the report of the invigilator would be considered and a decision would be made whether disciplinary action, with the potential for expulsion, should be undertaken.

The rules, as I shall demonstrate, required notice to be given to the student of the convening of the preliminary inquiry. A letter dated 31st May 2006 was sent to the claimant at the Docklands address. An email was sent on the following date to her KCL email address. In the event, she received neither because her flatmate had taken with her the key to the postbox and because she did not check her KCL email account. Accordingly, the preliminary review which took place on 13th June was conducted in her absence.

The reviewer decided that there was potentially a case of major misconduct, and so set in train the proceedings which resulted on 13th July 2006 in the convening of an Examinations Misconduct Committee. Notice of that hearing was sent to the Docklands address by a letter dated 27th June 2006 and also by notification to two of the claimant's email accounts, one a Hotmail account and the other her KCL account. The documents, upon which reliance was intended to be placed, were likewise sent to the same address. She did not receive that letter or those documents because of course she was by then in Beijing and, as it happens, her flatmate had not returned to the flat or opened the postbox.

The Committee considered documentary evidence and heard the orally expressed opinions of Dr Barker. Mr Scrivener QC categorises his observations as evidence. It is possible to categorise them as representations. In any event, they amounted to opinions upon the documents and upon the inferences that could be drawn from those documents. It matters not into which category they fall.

Dr Barker explained to the Committee that the material on the post-it stickers was relevant to three out of four of the questions asked in the exam; that the handwriting was neat and appeared to correspond with that of the claimant; that in his opinion a great deal of effort had been taken to write the notes carefully and in very small handwriting on the post-it notes; that in his opinion, and for a variety of reasons, it was possible to exclude the suggestion that the post-it notes may have been scribbled during the examination in haste, as part of the examination technique of the student. He expressed the opinion that there appeared to be no doubt that the writing of the notes was premeditated and, by necessary inference therefore, that they had been taken into the exam to assist the student's performance in the exam; in blunt English, to cheat. The Committee reached that conclusion.

The claimant did not become aware of the Committee's conclusion and of her expulsion from the college consequent upon it until the end of July, when her flatmate opened the postbox for the first time and examined the contents of letters, which revealed the history that I have described. She then acted promptly. On 2nd August 2006 she sent a 3-page typewritten letter to the Principal of King's College, setting out in summary the history which I have recounted. In paragraph 6 she stated:

It is fair to observe that the letter did not say more to justify the claimant's contention that she had not cheated by, for example, explaining, as through her counsel she now does, that it is her case that she took the post-it notes into the examination inadvertently, having been distracted by her concern about her mother's operation. However, even the limited information that the claimant did give about her case was not before either the preliminary inquiry or the Examinations Misconduct Committee.

That letter elicited a response from the Principal dated 8th September 2006. As I shall explain, he was charged with the duty of determining whether or not an appeal against the Committee's decision should be entertained. He could do so on two grounds: first, that there was new evidence which could not have been or for good reason was not made available at the time of the hearing; secondly, that evidence can be produced of a significant procedural error on the part of the college before or during the hearing. He devoted the greater part of his letter to the second issue and concluded that there had been no procedural error. His decision in that respect is challenged in these proceedings.

The Principal did not in terms devote any of the letter to the first of the grounds upon which an appeal was sought. That part of his decision too is challenged on the simple ground that it was obvious that there was evidence which had not been before the Committee, namely the claimant's own evidence summarised in her letter requesting the appeal. In addition, she wished to adduce other evidence designed to support the proposition that she was concerned about her mother's condition. That too is said to be an error of procedure on the part of the college.

The claimant then involved lawyers, including lawyers in Hong Kong, who challenged the decisions of the college. That then prompted, on 16th October 2006, an immediate and effectively unqualified offer of an appeal hearing. The college asserted that it did not accept that there had been a procedural error, but:

That offer was reiterated in a solicitor's letter of 13th February 2007. The college also drew to the claimant's attention and that of her advisers the availability of an alternative statutory scheme: a complaint to the Office of the Independent Adjudicator for Higher Education. The claimant rejected the offer of a fresh appeal and did not take up the suggestion of complaining to that office. She did so in summary because she claimed the right to a fair hearing before the Examinations Misconduct Committee, which preserved her right of appeal in the event of an adverse finding.

The claimant's judicial review claim is put on a number of bases, but essentially they come down to this. She at no stage had the opportunity to participate in the disciplinary proceedings that resulted in her expulsion from the college. Consequently the decisions made were unfair and reviewable, and that the unfairness should be put right by a declaration and, if necessary, a mandatory order of this court.

In a nutshell, the college's answer is that it followed to the letter and with perfect fairness the procedures which bound it and the claimant, and in any event if there was any unfairness it has put matters right by offering an appeal. Further and in any event, even if that is wrong, the proper avenue of redress for the claimant is a complaint to the Office of the Independent Adjudicator and not judicial review.

The starting point is therefore the regulations which govern conduct and misconduct proceedings of the college. Self-evidently, it is a serious disciplinary offence, likely to result in expulsion, for a student to cheat at an exam. In "Misconduct regulations: Guidelines for students", a document issued to students attending the college, cheating is defined as:

The misconduct regulations which are attached to the guidance for students as appendix 1 set out a detailed and plainly fair procedure for dealing with disciplinary matters. The relevant paragraphs are as follows:

Paragraph 7 of the guidance given in the same document to students states:

The claimant did notify the college of a contact address. She gave the Docklands flat and her KCL email address. She also notified as her home address the business office of her mother and as her home email the Hotmail email account, which she operated. At no stage did she change the contact address: the Docklands flat.

It is of course profoundly unfortunate that the arrangements which the claimant made for the receipt of mail at her contact address failed in a way that could not conceivably have been realised or foreseen by the college, namely by the early departure of her flatmate with the key to the postbox.

Mr Scrivener begins his challenge to the decision-making process by criticising the notification given of the preliminary inquiry, and by the decision of the Academic Registrar not to adjourn the preliminary inquiry once he realised that the claimant was not attending.

There is nothing in that criticism. The college fulfilled its obligation to notify the claimant at her contact address of the convening of the preliminary inquiry, and also sent to her an email at her KCL email account. The college had absolutely no reason to believe that she would not have received a document sent to her by those means. According to Mr Fairweather, who has experience in a similar role at Birmingham University, it is far from unusual for students charged with serious misconduct not to attend preliminary hearings or even the main hearing of the Examinations Misconduct Committee. Accordingly, the college cannot reasonably have been expected to draw the inference at the preliminary inquiry stage that the claimant had not received the documents. They were sent to her contact address in term time. They were emailed to her. It was a simple and unforeseeable misfortune that they did not come to her notice.

Mr Scrivener redoubles his criticism of the procedure adopted at the Examinations Misconduct Committee stage. He submits that by then, as would be known to the college, the claimant was on vacation. The details recorded for her in the college records would have indicated a home address in Hong Kong, albeit with a business reference. She was of Chinese extraction. Her name was obviously Chinese. It was at the very least highly likely that she would not be at her contact address in Docklands during the long vacation. Nevertheless, the college was entitled to follow its own procedure, which it was entitled to assume that the claimant knew because she had been given copies of the guidance and regulations. The college was entitled to assume that she would update her contact address for a period when she was not going to be there or to be accessible there. It was open to her to give as her contact address during the long vacation either her mother's business address or her own address at a flat in Beijing, or some other place at which she could be contacted if necessary. Rule 3.2.5 is unequivocal. It obliges the college to send communications about disciplinary proceedings to the student "at the last term time address notified by the student to the College". In fact the college went beyond that and sent communication by email to the claimant's two email accounts.

Miss McCafferty for the college draws my attention to a line of authorities which establish that if by agreement between an individual and an institution documents are to be served in a particular manner, then service in that manner suffices, even in circumstances where the outcome of the proceedings about which the communication is made will be the expulsion of the individual from the institution. She draws my attention in particular to James v Institute of Chartered Accountants (1907) 98 LT 225, in which in graphic language that point was made clear. Her point is, in my judgment, unanswerable. I had at one stage thought that if in the case of a foreign student during the long vacation she had given an address at which for certain communication could readily have been achieved, for example by fax, that that method, although not mandatory under the rules, was one which should, as a routine precaution, have been adopted. But as Miss McCafferty has explained to me, what I had thought was the case, namely that she had given a fax number at her mother's business address, was not in fact the case.

Accordingly, even if there was an obligation on the college to go beyond the letter of the rules and, in accordance with its discretionary power under Rule 3.2.5, to use other methods of communicating the fact of disciplinary proceedings to the claimant, it fulfilled that obligation by sending notice and relevant documents to her two email accounts. The claimant herself says that her main method of communication was via email accounts. In modern times students with email accounts can reasonably be assumed by educational institutions to have access to those accounts on a regular basis, so that communication to them will ordinarily be adequate notice of disciplinary or other proceedings. My concern that 14 days' notice sent to the term-time address only might, in some circumstances, not be adequate notice is on the facts allayed by the steps taken by the college to communicate with her by email.

In the event, those steps too failed because living in Beijing in a flat which did not have dedicated broadband or other access to email, the claimant only gained access to her email accounts by Internet cafes, and it seems did not do so throughout her weeks in Beijing. That too is not something that could readily have been foreseen by the college authorities. Both in relation to this individual claimant and generally, they could reasonably have anticipated that she and other students would gain access to their email accounts regularly, at least weekly.

Accordingly, the answer to Mr Scrivener's submission that the Committee should not have proceeded in her absence is that she was given ample opportunity to attend, but for reasons which the college could not reasonably foresee was unable to avail herself of that opportunity. That is the extent of its obligation. It is not an obligation to ensure, come what may, that she does attend. That is both beyond the power of the college and beyond its obligation. Its duty is to give notice of hearings, to afford the opportunity of attending and to consider any representations that may be made at the hearing fairly and properly, but not to decline to proceed in the absence of an individual student.

Mr Scrivener places reliance on the words of regulation 3.2.6. He states, correctly, that there are two provisos to the opportunity given by that regulation to a disciplinary committee to proceed in the absence of a student. First, that the student has been given written notice in accordance with the timescale laid down in the regulations, which he concedes was done, or at least is deemed to have been done. Secondly, "that those conducting the hearing believe that all the evidence and representations are before it."

The second proviso does not bear the meaning which Mr Scrivener submits that it bears, that in effect when a student has not attended then the Committee cannot have before it all of the evidence and representations necessary to make its decision. The wording of that proviso gives to the Committee a wide measure of discretion. It is its belief which counts and its belief that the evidence and representations are before it, by necessary implication the evidence and representations necessary in its opinion for it to reach its conclusion. It is easy to envisage circumstances in which the Committee would not believe that all of the evidence and representations necessary for its decision were before it. Where, for example, the issue was finely balanced, the student had put in an explanation which might or might not be wrong but which required the student personally to be heard, then the Committee might well conclude that it was necessary to give the student a further opportunity to be heard before it considered that it had all of the evidence and representations necessary for its decision.

But in the opinion of this Committee these facts were straightforward. The claimant had introduced documents apparently prepared for the purpose into an examination. She had made use of them, indeed had made such use of one of them as virtually to copy word for word that which appeared on one of the post-its, so that it was, in the common phrase, an open-and-shut case. It was entitled so to conclude and to proceed in the absence of the claimant. Accordingly, I reject Mr Scrivener's challenge to the second of the three stages in the disciplinary procedure.

As to the appeal stage, Miss McCafferty submits that it can be implied into the Principal's letter rejecting the possibility of an appeal that he determined, under regulation 3.10.3, that there was no new evidence which could not have been or for good reason was not made available at the time of the hearing. Miss McCafferty submits that that is a straightforward Ladd v Marshall test. In my view it is not necessary to read into a rule to be operated by the Principal of an academic institution, the restrictions imposed on the admission of fresh evidence in a court of appeal. All that is necessary is that there should have been new evidence which was not put before or heard by the Committee, and which was for good reason not made available at the time of the hearing.

The briefest examination of the facts which I have summarised demonstrates that there was new evidence here which had not been put before the Committee, namely the claimant's own evidence and, in support, the evidence of her mother about her operation. Why was that not before the Committee? It was simply because the claimant was unaware of the disciplinary proceedings. On any fair reading of the perfectly ordinary phrase "for good reason", that was a good reason why it was not made available at the time of the hearing before the Committee.

Accordingly, in my opinion, the decision of the Principal was erroneous and the only reasonable decision, applying paragraph 3.10.3 of the rules, was that there was new evidence which for good reason had not been available at the hearing, so that, as the opening words of Rule 3.10.3 provide, he "will allow an appeal to be heard". That error was, as I have noted, rapidly corrected by the college by the offer of an appeal hearing by the letter dated 16th October 2006. Mr Scrivener contends that it was an inadequate offer because it did not offer the claimant a first instance hearing and then a fair appeal. But as the first instance hearing before the Committee was properly and fairly held, that was not that to which she was entitled. She was entitled to a fair appeal. There is no doubt that the college would have afforded her a fair appeal, at which she could have advanced evidence, principally from herself, about relevant matters.

It is not suggested that, if the claimant had advanced her own explanation for taking the post-it stickers into the examination and, if appropriate, for the coincidence of the wording of one or two of them with answers, the Committee would have decided that nonetheless she had cheated. Her explanation, if true, absolves her of cheating. In those circumstances, if an appeal had been heard and the appeal committee had reached the conclusion that she had not cheated, it is not suggested, and I find it hard to conceive that it could be, that the appeal committee would not have ordered that the decision of the Examinations Misconduct Committee that she be expelled be rescinded.

I turn now to the alternative remedy suggested. The Office of the Independent Adjudicator for Higher Education is established under Part 2 of the Higher Education Act 2004. King's College London is a qualifying institution within section 11. The Office of the Independent Adjudicator is a body corporate designated by the Secretary of State for England to hear and make recommendations about complaints by students against higher education institutions.

A complaint by this claimant that she had been unfairly dealt with under the college's disciplinary procedures or that the college had reached the wrong conclusion, that she had cheated, is a "qualifying complaint" under section 12 because it is: "

The Office of the Independent Adjudicator's rules identify, in Rule 3, the complaints which are not covered by the scheme. They do not include complaints about expulsion due to a finding of cheating in exams. As the handbook issued by the Office helpfully explains, the jurisdiction of the Office includes "disciplinary matters". Plainly this claimant's complaints, all of them, both as to procedure and outcome, were within the purview of the Office.

Rule 7 provides that the reviewer appointed by the Office may, where the complaint is justified in whole or in part, make recommendations. Those recommendations include, but are not limited to:

Rule 7.5 provides that the Office of the Independent Adjudicator expects the higher education institution to comply with the formal decision and any accompanying recommendations in full, and in a prompt manner. Rule 7.7 provides that any non-compliance will be reported to the Board and publicised in the Annual Report.

Mr Scrivener points out, correctly, that in relation to a complaint such as that made by this claimant, the Office would have no sanction available to it beyond adverse publicity in its annual report. But there is no suggestion, let alone evidence, that recommendations of the Office are routinely ignored by higher education institutions, let alone by King's College. The statutory scheme, in my judgment, provides an inexpensive, fairly rapid and comprehensive avenue by which challenges to a decision to expel a student for alleged cheating at exams can be fairly resolved.

Mr Scrivener points out, correctly, that the Office's procedures do not ordinarily provide for oral hearings or the giving of evidence or the cross-examination of witnesses. Nor does judicial review. Nor is it necessary on the facts of this or any similar case. What is required is that the Office should fairly review the procedures adopted by the college and determine whether or not a recommendation should be made that decisions should be revisited. As Rule 7.4 makes clear, recommendations can be made, even where there has been no error in domestic procedures. For example, if the reviewer had considered in this case that although the claimant had been properly notified of the hearing before the Examinations Misconduct Committee, but nevertheless in fairness to her she should be afforded a fair first-instance hearing at which she could give evidence and call witnesses, the Office could have made an appropriate recommendation. My powers, by contrast, are limited only to striking down decisions made which are unlawful or irrational, or are otherwise challengeable on Wednesbury grounds.

Mr Scrivener submits that it was thought at the time these proceedings were commenced that judicial review would be a speedier and more satisfactory procedure than a complaint to the Office. That view was unhappily misconceived. The hearing times for full judicial review hearings are not far short of a year now, from initiation of proceedings to hearing. The timescale for the Office was (and as far as I know still is) of the order of six months at the outside. The decision not to accept the college's offer of an appeal or to make a complaint to the Office of the Independent Adjudicator was misconceived, and has had an unfortunate consequence for the claimant.

Judicial review is a remedy of last not first resort. I wish to make it clear, both to this claimant and to others in a similar position to her, that complaints of this nature should not ordinarily be pursued by judicial review, but should be pursued where a sensible offer is made, as here, by accepting that offer or, in the absence of such an offer, by complaint to the Office of the Independent Adjudicator. That is the appropriate procedure for resolving complaints about allegedly unfair expulsion from a university.

It follows from the observations that I have made that, although I do criticise the Principal for refusing to permit an appeal to go forward, there is no remedy that I am prepared to grant. The college rapidly rescinded the Principal's decision and afforded the claimant all that she was entitled to under the rules. She did not, as she should have done, pursue her complaint to the Office of the Independent Adjudicator and it is not appropriate, and was never appropriate, to bring this claim for judicial review. Accordingly, I dismiss it.

MISS McCAFFERTY: My Lord, I am grateful. Both sides have exchanged and I hope lodged with the court --

MR JUSTICE MITTING: You may have exchanged them, you have not lodged them.

MISS McCAFFERTY: I do apologise.

MR JUSTICE MITTING: Or if you have, they have not reached me. This is a common occurrence.

MISS McCAFFERTY: If I may pass them up. (Handed) If I may pass up a copy of the claimant's schedule as well.

MR JUSTICE MITTING: May I hand down the original of the post-it documents, because they may be required in future. (Handed)

Yes?

MISS McCAFFERTY: My Lord, I apply for summary assessment of the defendant's costs and I apply for that on the indemnity basis. I do not do that lightly, my Lord. I do it because of your Lordship's finding that the claim was misconceived.

The claimant should have brought this complaint to the OIA. That was explained to her from the very outset and she chose not to. Clearly a deliberate decision was taken to go down that route. My Lord, you will see from the claimant's schedule of costs on the front of the page that not only has she been advised by solicitors throughout, but she has the advice of two Queen's Counsel, obviously changed horses to my learned friend, and junior counsel, and has taken a calculated and ultimately misconceived decision to put the defendant to the cost of defending this claim.

The defendant also, as your Lordship has found, promptly rescinded its, as your Lordship has found, mistaken decision and offered the claimant an appeal. Everything she was entitled to. That offer was repeated. It was repeated on an open basis. The misconceived nature of the claim was set out in the detailed grounds, which were also served in early 2007.

In these circumstances, where the proceedings were misconceived and the continuing conduct of the proceedings was misconceived, in the sense that the penny ought to have dropped considerably before today, the defendant applies for its costs on the indemnity basis. The effect of that, as your Lordship will be aware, is that the burden of proof now shifts to my learned friend as to the reasonableness of the items on the schedule.

MR JUSTICE MITTING: May I ask, Mr Scrivener, is any element of this schedule agreed?

MR SCRIVENER: I am afraid that like my learned friend I only got it when I got to court this morning.

MR JUSTICE MITTING: It is late. I am perfectly happy to decide in principle who should pay the costs and on what basis, but I am not prepared to undertake a line-by-line assessment.

MR SCRIVENER: No. I would have thought we could agree it, with respect.

MISS McCAFFERTY: I am content with that, my Lord, so long as the basis is decided today.

MR SCRIVENER: The only question is whether there should be indemnity costs.

MR JUSTICE MITTING: You accept you have to pay the costs as loser?

MR SCRIVENER: I do. Even if we had a peripheral victory, it was very short-lived. We have been comprehensively defeated. There are no cases I know on either the points about alternative remedies, although I did not actually do all this work, my predecessor did. Having looked through the authorities, they could not find any authority on the point. It may be now it seems clearer now the whole thing has been debated, but these sort of things happen in litigation. It not going (inaudible).

MR JUSTICE MITTING: Miss McCafferty, is there anything you want to say in reply?

MISS McCAFFERTY: My Lord, no. There may be a particular omission in the OIA, but the general principles of (inaudible) are well established.

MR JUSTICE MITTING: I order that the claimant pay the defendant's costs on the standard basis, to be the subject of a detailed assessment if not agreed.

I decline to order indemnity costs for two reasons. First, I doubt that these proceedings would ever have been brought if the Principal had not made the decision which I have found to be erroneous in refusing an appeal.

Secondly, although I have concluded that the proceedings were misconceived for reasons I have explained, there has been no lack of candour or procedural propriety in bringing the claim and, as Mr Scrivener observes, the precise point in issue has not previously been decided.

MISS McCAFFERTY: I am grateful, my Lord.

MR SCRIVENER: Can I thank my Lord on behalf of the parties in sitting late to finish tonight.

MR JUSTICE MITTING: Not at all. I do not like to have more than one problem at a time. I like to resolve them as and when I can. Thank you both for your submissions.